The offence of stalking is defined as ‘the following of a person about or the watching or frequenting of the vicinity of, or an approach to a person’s place of residence, business or work or any place that a person frequents for the purpose of any social or leisure activity’. Put simply, stalking involves the persistent course of conduct or actions by a person which are intended to maintain contact with or exercise power and control over another person. These actions can cause distress, loss of control, fear or harassment to the victim and occur more than once.
Stalking can involve threats and attempts to intimidate or induce fear in the person they are stalking. The person being stalked may only realise that they are being stalked once they identify a pattern of strange or suspicious incidents.
Stalking can take place in many forms, including:
- Followed or approached the stalked person
- Loitered near, watched, approached or entered a place where the stalked person resides, works, or visits
- Kept the stalked person under surveillance
- Interfered with property in possession of the stalked person
- Given or sent offensive material to the stalked person or left offensive material where it is likely to be found by, given to, or brought to the attention of, the stalked person
- Telephoned, sent electronic messages to or otherwise contacted the stalked person
- Sent electronic messages about the stalked person to anybody else
- Made electronic messages about the stalked person available to anybody else
- Acted covertly in a way that could reasonably be expected to arouse apprehension or fear in the stalked person
- Engaged in conduct amounting to intimidation, harassment or molestation of the stalked person
Such conduct can be considered reasonable and not amount to an offence if it is engaged in as a part of employment and it is a function of employment to carry out these activities.
Causing fear of either physical or mental harm can involve making a person fear unconsciousness, pain, disfigurement, physical contact that they might reasonably object to, psychological harm, or disease, amongst a range of other fears.
Stalking in New South Wales
In New South Wales, the criminal offence of stalking is contained under section 13 of the Crimes (Domestic and Personal Violence) Act 2007. Police must prove that the accused person stalked another person with the intention of causing another person to fear physical mental harm.
This offence carries a maximum penalty of imprisonment for 5 years, a $5500 fine, or both.
It is also an offence to cause fear of physical or mental harm to someone’s partner, or someone whom they are in a domestic relationship with. It must also be proven that the accused person knew at the time of committing the offence that their conduct was likely to cause fear in the other person. Police do not need to prove that the victim of the stalking actually feared harm from the accused person’s conduct.
Stalking in the Australian Capital Territory
In the Australian Capital Territory, the criminal offence of stalking is contained under section 35 of the Crimes Act 1900 and it must be proved to the court through evidence that the accused person caused apprehension, fear of harm, actual harm or harassment to the person stalked, and that they intended to do so. Stalking requires acts on at least separate incidents and cannot be limited to a single event.
In the ACT, this offence carries a maximum penalty of imprisonment for 2 years. However, in circumstances where the stalking involved either a contravention of an order made by a court or the possession of an offensive weapon, then the maximum penalty is imprisonment for 7 years. Similarly, if the offence is an aggravated offence, meaning it involves family violence, but does not involve the contravention of court orders or offensive weapons, then the maximum penalty is 3 years imprisonment.